Why the Courts Have NOT Decided the Constitutionality of Proxy Voting

A few weeks ago the Supreme Court denied certiorari in a case brought by House Republicans to challenge the constitutionality of the House’s proxy voting rule, which allows members, during a period of “public health emergency,” to vote on legislation and other matters without being physically present. The effect of the Court’s decision was to leave standing the D.C. Circuit’s decision to affirm the district court’s dismissal of the lawsuit on grounds of the Speech or Debate Clause. Speaker Pelosi praised the Court’s action and declared “[b]oth the Constitution and more than a century of legal precedent make clear that the House is empowered to determine its own rules—and remote voting by proxy falls squarely within this purview.” Yesterday the Speaker, based on a notification from the Sergeant-at-Arms and the Office of Attending Physician, extended the period of proxy voting through March 30, 2022, at which point the “public health emergency” will have lasted almost two years.

Contrary to the Speaker’s suggestion, neither the Supreme Court’s action nor the rulings of the lower courts say anything about the constitutionality of proxy voting. To the contrary, both the constitutionality and necessity of the House’s rule remain live issues, and the House should not be misled into thinking that the courts have resolved them.

The Proxy Voting Litigation

In May 2020 the House of Representatives adopted H. Res. 965, which provides that, during a period of “public health emergency due to a novel coronavirus, an absent member may cast votes or be recorded as present on the House floor via another (physically present) member whom the absent member has previously designated as a proxy. House Minority Leader Kevin McCarthy, along with a couple dozen other House Republicans and several constituents, brought suit against Speaker Pelosi, the Clerk of the House, and the House Sergeant-at-Arms to enjoin the use of proxy voting. The suit contended that proxy voting violates the Constitution’s quorum clause and a number of other provisions, which individually or collectively require physical presence to establish a quorum and/or to cast votes in the House.

In addition to defending the constitutionality of proxy voting, the defendants argued that the courts could not consider the constitutional merits at all because (1) the plaintiffs lacked standing to sue and (2) the suit was barred by the Speech or Debate Clause. Both the district court and the D.C. Circuit concluded that there was no need to reach the standing question because the Speech or Debate Clause required dismissal of the lawsuit.

Writing for the D.C. Circuit, the eminently well-qualified Judge Srinivasan (if you don’t get the reference, count your blessings) explained that “it is long settled that the Clause’s protections range beyond just the acts of speaking and debating,” but extend to all matters constituting “’an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.’” McCarthy v. Pelosi, No. 20-5240, slip op. at 6-7 (D.C. Cir. July 20, 2021) (quoting Gravel v. United States, 408 U.S. 606, 625 (1972)). Here “we are hard-pressed to conceive of matters more integrally part of the legislative process than the rules governing how Members can cast their votes on legislation and mark their presence for purposes of establishing a legislative quorum.” McCarthy, slip op. at 8.

Neither the D.C. Circuit nor the district court (much less the Supreme Court) decided anything about the constitutionality of proxy voting. Because the Speech or Debate Clause barred the lawsuit, the courts lacked the power to address the merits of the constitutional question.

The importance of this distinction may be illustrated by the case of Consumers Union of United States, Inc. v. Periodical Correspondents’ Ass’n, 515 F.2d 1341 (D.C. Cir. 1975), which both the district and appeals court cited as controlling precedent in the proxy voting case. Consumers Union involved a claim that the congressional rules governing admission to the press galleries and the application of those rules by the galleries resulted in the plaintiff’s exclusion in violation of the First Amendment. The D.C. Circuit held that the seating of journalists in the press galleries was a sufficiently integral part of the legislative process to qualify for Speech or Debate protection. As both Judge Srinivasan and the district judge (Judge Contreras) observed, it would seem to follow a fortiori that proxy voting is also protected. See McCarthy, slip op. at 9 (“If the Speech or Debate Clause covers the administration of seating in the press galleries, in short, it must also cover the administration of voting by Members.”); McCarthy v. Pelosi, 480 F.Supp. 3d 28, 39 (D.D.C. 2020) (“If rules controlling access to the press galleries are ‘an integral part of the legislative machinery,’ rules controlling how Members vote are even more so.”) (quoting Consumers Union, 515 F.2d at 1350).

When I was at the House Counsel’s office, I handled a lawsuit for the Periodical Press Galleries which raised more or less the same issues as Consumers Union. In a briefing for the Bipartisan Legal Advisory Group staff, I explained that we would defend the lawsuit on the ground that the Speech or Debate Clause precluded judicial review of House decisions about who to admit to the press galleries. One of the staff frowned at this and asked whether that meant we would be taking the position that the House could exclude nonwhites from the press galleries if it so chose. No, I replied, we would not be arguing that the House could lawfully do that, but we would argue (if it came up) that the courts would be precluded from hearing a suit against the House on such grounds.

Similar hypotheticals came up during the proxy voting case. Chuck Cooper, who represented the plaintiffs, pointed out to Judge Contreras that accepting the House’s position would mean the court would be powerless to address more problematic rules, such as “a rule counting male members’ votes twice and female members’ votes once.” This concerned Contreras enough that he asked House Counsel Doug Letter for his response, but, as recounted in this Lawfare piece, “Letter largely evaded the question,” essentially indicating that such a discriminatory rule was not involved in this case. That was apparently good enough for the court, which dropped a footnote in its opinion noting that “the present case does not involve hypothetical rules, discussed at oral argument, that deprive Members of votes on a discriminatory basis” and thus “the Court need not decide whether immunity would apply in such a case.” McCarthy, 480 F. Supp. 3d at 39 n.6. Like Letter, however, Judge Contreras offered no suggestion as to how a case involving such hypothetical rules might be distinguished.

All of which is to highlight that the dismissal of the proxy voting lawsuit is not in any way a determination of the constitutional merits of the case. Rather it has the effect of leaving it to Congress to decide for itself whether proxy voting comports with the Constitution. Unfortunately, members of Congress, though bound by oath to follow the Constitution, too often view the absence of judicial intervention as a greenlight to ignore their own responsibilities.

Congressional Constitutional Interpretation

In my view proxy voting, perhaps even more than remote voting, raises a number of constitutional concerns. Some of these involve apparent conflicts with specific constitutional provisions, such as the quorum clause and the requirement that Congress assemble for purposes of conducting its legislative business. Others might be characterized as issues of constitutional spirit and congressional precedent and tradition, which strongly suggest that the legislative process entails a physical gathering that promotes (though it does not guarantee) debate, negotiation, and compromise.

It may well be that a court, if required to reach the constitutional merits of proxy voting, would conclude that it should defer to the House’s judgment that such a system is a constitutionally permissible means of responding to an unprecedented pandemic. But this does not mean that Congress should necessarily reach the conclusion that proxy voting is constitutional or, put somewhat differently, that the adoption of proxy voting is purely a policy question without constitutional ramifications. For one thing, of course, Congress has no obligation to defer to itself. For another, Congress may legitimately take into consideration a wider range of constitutional concerns than may the courts. See generally Neal Katyal, Impeachment as Congressional Constitutional Interpretation, 63 Law & Contemp. Probs. 169, 170 (2000) (arguing that while judicial methodologies such as originalism and textualism are appropriate to constrain the discretion of unelected judges, they “[should] not preclude Congress from making constitutional judgments that are more flexible and nuanced.”). For example, the House might decide that the Constitution embodies a strong moral principle in favor of in person assembly and voting, one that could be overcome only in the most compelling circumstances. See id. at 188-191 (discussing the application of Ronald Dworkin’s theory of moral principles to congressional constitutional interpretation).

Here we should note that the justifications offered for proxy voting, particularly at the present time, seem less than compelling. As Paul Kane noted on twitter earlier today, whatever sense proxy voting made as a pandemic response measure in the spring of 2020, now “both Rs & Ds just use it as a convenience thing for skipping votes.” He gives the example of Representative Ro Khanna, who voted by proxy earlier this week because while the voting was going on the congressman was giving a press interview, less than 100 yards from the House chamber, to promote his book. Many more such examples may be found over the last two years. As remarked in a New York Times article last summer, “the proxy voting system has become a tool of personal and political convenience for many House members.” Nor does it seem to have done much to protect the health of members of Congress. More than 100 representatives have contracted COVID since the outset of the pandemic, and the House does not seem to be in any better off in this regard than the Senate, which has not adopted proxy or remote voting.

The House’s rush to institute proxy voting was perhaps understandable as an initial response to COVID. But a more sober and reflective look at the issue is long overdue.

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